Wednesday, July 28, 2010

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New York Gov. David Paterson will not face criminal charges for calling up a woman who later dropped domestic violence charges against a top aide, though the aide could still face prosecution, according to an investigative report issued Wednesday.

Retired Judge Judith Kaye, tasked by state Attorney General Andrew Cuomo with examining Paterson's role in the assault case, said the Democratic governor's actions did not constitute witness tampering or any related offense.

However, she criticized him for failing to inquire about what actually happened that night beyond the account of his friend and aide David Johnson, and she wrote that he also didn't try to confirm a report that an order of protection was issued.

After the confrontation between Johnson and his then-girlfriend Sherr-una Booker on Oct. 31 in the Bronx, Paterson called Booker and endorsed a press statement that said the run-in was not violent.

"It is hard to reconcile this conduct with the governor's expressed commitment to the cause of domestic violence prevention," Kaye wrote. Her investigation found no interference by State Police, including a trooper who contacted the woman, into the criminal investigation by New York City police.

Paterson declined to comment on the report Wednesday, saying he hadn't read it.

Booker filed a police report saying Johnson choked her, threw her against a mirror and tried to rip her Halloween costume off. After the Paterson call weeks later, she did not show up for court, and the complaint was dropped.

"The evidence reviewed warrants consideration of possible charges against David Johnson relating to the Oct. 31 domestic incident," Kaye wrote.

Booker's lawyer Ken Thompson said the report showed she never wavered, and "told the truth from beginning to the end."

"All she ever wanted to do, and still hopes to do until this very day, is hold David Johnson accountable for what he did to her," Thompson said.

Even with the announcement that no charges will be pursued against Paterson, the political damage has been done. Buffeted by other ethics questions about World Series tickets, Paterson soon dropped plans to run for a full term this fall, while saying he intended to finish the year in office.

His attorney, Theodore Wells Jr., said that the investigation exonerates the governor of wrongdoing.

Kaye and the state Public Integrity Commission are still looking into whether Paterson illegally obtained the tickets, then lied about it. The commission has a hearing scheduled Aug. 17.

Officials disclosed that Paterson, members of his State Police security detail, and other administration employees spoke to Booker shortly before she was supposed to appear in court for a hearing in the domestic violence case Feb. 8.

The governor confirmed that he spoke to Booker on the telephone the day before the hearing but denied trying to talk her out of pressing charges. He said he just wanted to see how she was doing. Both told Kaye the conversation focused on rumors then circulating about Paterson and press attempts to contact Booker.

The New York Times later quoted unidentified sources as saying that the governor had personally directed two state employees to contact Booker and that he tried to get her to change her story and describe the incident as nonviolent.

Oscar Michelen, Johnson's lawyer, has said his client was never arrested or charged, has remained suspended without pay and looked forward to Kaye's report so he can move on.

He has said New York City police arrived at Booker's home Halloween night and "made a determination there was no evidence a crime had been committed."

Kaye's report said the city officers saw no visible injuries and classified the confrontation as harassment, a violation. She also noted gaps in the legal system that made it difficult for Booker, who was without a lawyer at the time, to file a restraining order against Johnson.

It took the patrol car 90 minutes to respond to Booker's first 911 call, after first going to a car accident and a landlord-tenant dispute because the call was characterized as "low priority." An accidental clerical error by police later wrongly classified the incident as "unfounded," Kaye's report noted.

Police Commissioner Raymond Kelly said Kaye's principal finding regarding the NYPD was that its officers were not unduly influenced and didn't show favoritism. He said they are following her recommendation to examine any deficiencies in the patrol's initial response.

State Police Maj. Charles Day, who headed Paterson's security detail, got a call from Johnson and in turn made three calls - to the NYPD liaison to his detail, the State Police first deputy superintendent, and Booker - before the patrol car arrived at Booker's apartment, Kaye wrote.

Booker testified that Day asked her not to file charges and to let State Police handle it internally. Day denied that, and a friend of Booker's who overheard the call on speaker phone said Day never told Booker not to talk to the NYPD, Kaye found.

Paterson aide Clemmie Harris, a former trooper, acknowledged that he had asked another Booker friend, Deneane Brown, to steer Booker toward "non-interventionist" ways of resolving her dispute with Johnson to avoid media attention, but Brown said she didn't do it, according to the report.

Kaye found no evidence to support a witness tampering charge against Harris or anyone else. She wrote that Day knowingly gave some inaccurate testimony in her investigation but later corrected it, which is a defense against perjury.

He also used State Police computers to see whether Johnson was subject to arrest, and Kaye noted it violates State Police protocol to access a criminal history "without a legitimate investigative purpose."

Day remains the head of the governor's security detail.

State Police counsel Darren O'Connor said the agency will examine Kaye's recommendations about the governor's detail. They include clearer policies on its duties and contact with the governor's staff.

Cuomo appointed Kaye to Paterson's case after critics pointed out a potential conflict of interest because he is also running for governor. Cuomo acknowledged a legitimate argument early in the investigation, before Paterson dropped out of the race.